The United States is one of the few industrialized, democratic nations in the world which still permits capital punishment on a state-by-state basis. Not all states have the death penalty but executions are still carried out in the United States and the punishment remains controversial.
Despite the singularity of its status internationally, the death penalty has historically been a popular policy in the United States, even though it has been hotly debated throughout US history in the legislature and the courts. This essay on death penalty will examine its legal status in the United States, its history, and its future.
A Comparison of the Death Penalty in Different Countries and the United States
The Death Penalty Debate in the United States
The Death Penalty: Is it Just and Fair?
Death Penalty: A Legal Overview of the Death Penalty in the United States
A. Status of the Death Penalty in the United States
B. The Troubled History of the Death Penalty in the United States
C. Arguments Against the Death Penalty
D. Arguments in Favor of the Death Penalty and Counter-Arguments
Given that public opinion has increasingly turned against the death penalty in the United States, combined with the expense of capital cases and concerns about the innocence of convicted defendants, it is time for the United States to take a stand with the rest of the democratic, industrialized world community and abolish the death penalty.
According to a recent poll of US voters which asked them about their views of the death penalty, support for the punishment is at a historic low. For the first time, a minority of US citizens oppose the death penalty, according to a poll by the nonpartisan Pew Research Center. “Only about half of Americans (49%) now favor the death penalty for people convicted of murder, while 42% oppose it. Support has dropped 7 percentage points since March 2015, from 56%” (Oliphant 2016). Support peaked in the mid-1990s, “when eight-in-ten Americans (80% in 1994) favored the death penalty and fewer than two-in-ten were opposed (16%)” (Oliphant 2016). Opposition to the death penalty was also vocal in the 1970s, particularly after the US Supreme Court decision Furman v. Georgia (1972) which briefly declared all death penalty statutes unconstitutional, deeming them discriminatory in the ways in which they were enforced.
The Supreme Court later found in Gregg v. Georgia (1976) that the death penalty itself was not cruel and unusual punishment, provided it was appropriately administrated and so long as its use was “judicious” and “careful” (“Gregg v. Georgia,” 1976 ). Post-Gregg, states with the death penalty have introduced safeguards, such as a separate process for determining if death is warranted, versus the subject’s guilt alone. The existence of the death penalty at all remains controversial within America, particularly given that the United States remains relatively isolated in terms of its insistence upon permitting the death penalty amongst modern, industrialized democracies. Other nations which still permit the death penalty include China, North Korea, and Saudi Arabia—hardly illustrious company in the sphere of human rights (“Death penalty statistics by country,” 2011).
Image Credit: The Economist http://www.deathpenaltyinfo.org/images/EconomistMap.png
History of the Death Penalty in the United States
The history of the death penalty extends far back into history, longer than the United States has existed as an independent nation. Even in the ancient world, the death penalty was practiced. “Code of King Hammurabi of Babylon codified the death penalty for twenty five different crimes, although murder was not one of them” (Reggio 2014). In Europe, by the tenth century, hanging was commonly used as a means of execution and by the Middle Ages in Great Britain and the rest of Europe, prisoners were often tortured before being executed, even for relatively minor crimes or for their religious affiliations. Well into the eighteenth century, stealing small sums of money were capital offenses although by the early nineteenth century in Great Britain, only serious offenses were capital crimes. This was also true of colonial America. “By 1776, most of the colonies had roughly comparable death statutes which covered arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion, and often counterfeiting” (Reggio 2014). The US Constitution expressly forbids cruel and unusual punishments under the Eighth Amendment of the Bill of Rights.
The question of whether the death penalty is cruel and unusual has been hotly debated. It may come as a surprise that as early as the mid-nineteenth century there was a robust movement to abolish the death penalty and many states elected to do so. In 1846, Michigan abolished the death penalty, followed by Rhode Island in 1852 (Reggio 2014). The abolitionist movement was extremely influential in supporting the abolishment of capital punishment as well. However, even while many states banned the death penalty, other states began to simply search for new methods to use to execute prisoners. “Between 1917 and 1955, the death penalty abolition movement again slowed. Washington, Arizona, and Oregon in 1919-20 reinstated the death penalty. In 1924, the first execution by cyanide gas took place in Nevada, when Tong war gang murderer Gee Jon became its first victim,” and the electric chair, versus hanging, became more common (Reggio 2014).
Arguments Against the Death Penalty
The legal argument most frequently used to protest the death penalty is that it is cruel and unusual punishment and thus a violation of the US Constitution Bill of Rights. However, the US Supreme Court has not found the death penalty in and of itself to be a cruel and unusual punishment under the Eighth Amendment, although it has found abusive treatment within prisons to be cruel and unusual. The Supreme Court performs a so-called “ proportionality analysis” when evaluating a punishment according to the following three tests: “Consideration of the offense’s gravity and the stringency of the penalty; a consideration of how the jurisdiction punishes its other criminals; and a consideration of how other jurisdictions punish the same crime” (“Death penalty,” 2017).
Another important argument against the death penalty is its discriminatory nature. Historically, African-Americans have been executed in greater numbers than whites, even for the same offenses. The Death Penalty Information Center (DPIC) notes that while “56% of death row inmates are black or Hispanic” and despite the fact that “racial minorities comprise half of all murder victims nationwide, a far greater proportion (77%) of the victims in capital convictions were white,” indicating that the act of an African-American or Hispanic individual murdering a white person may lead to a higher conviction rate (Love 2012). Furthermore, the humanitarian watchdog group Amnesty International notes “20% of blacks nationwide were convicted by all-white juries” (Love 2012).
There is also a significant state-by-state discrepancy that can result in entirely different systems of justice being dispensed, simply depending on the location of where a crime has occurred. For example, “nationally, Alabama ranks 23rd in population, but second in executions in 2011” and “African-Americans are 27% of the population, yet comprise 63% of the prisoners” (Love 2012). The former states of the Confederacy make up the vast majority of the states executing criminals in the US. “Over three quarters of executions take place in the states of the former Confederacy (including 35% in Texas alone) with their history of racial violence, lynching and arbitrary Black Codes and Jim Crow laws, which sanctioned death for blacks for certain offenses” (Love 2012).
Image Credit: No to War – http://www.notowar.com/wp-content/uploads/2011/10/death6-500×375.jpg
The discriminatory nature of the death penalty is one of the major reasons that the US Supreme Court found the way in which the death penalty was enforced in the US to be unconstitutional in Furman v. Georgia (1972): “The Court reasoned that the laws resulted in a disproportionate application of the death penalty, specifically discriminating against the poor and minorities. The Court also reasoned that the existing laws terminated life in exchange for marginal contributions to society” and found no evidence of any deterrent value (“Death penalty,” 2017). Yet while this temporarily required states to review how their death penalty statutes were written, it merely prolonged rather than terminated the use of the death penalty in the United States, as states reviewed how death penalty cases and sentencing were administrated. “In Gregg v. Georgia, the Court held the death penalty was not per se unconstitutional as it could serve the social purposes of retribution and deterrence” and “upheld Georgia’s new capital sentencing procedures, reasoning that the Georgia rules reduced the problem of arbitrary application as seen in earlier statutes” given that the new death penalty was not discriminatory against African-Americans nor arbitrary as previous death penalty statues of the kind overturned in the Furman case (“Death penalty,” 2017). Yet the statistics still indicate that the death penalty is being administered in a discriminatory fashion.
The US Supreme Court has had to act in numerous instances to prevent certain states in engaging in egregious actions and stepping beyond the bounds of the law to use the death penalty in cruel and unusual ways. A good example is that of the execution of mentally incapacitated defendants with low IQs. In Atkins v. Virginia, (2002), the Court found that executing patients classified as mentally handicapped was cruel and unusual because the nature of their disability “lessens the severity of the crime and therefore renders the extraordinary penalty of death as disproportionately severe” (“Death penalty,” 2017). The Court similarly found this to be the case with the execution of juveniles. In Roper v. Simmons (2005), the Court found that given that the justice system does not regard juveniles as mentally competent adults “juvenile offenders assume diminished culpability for their crimes” and death is therefore not a just punishment (“Death penalty,” 2017). The fact that state legislatures permitted such executions upon the mentally incapacitated and very young to take place in the past highlights the extent to which emotion can affect the administration of justice.
Furthermore, there is mounting evidence that innocent individuals have been found guilty of capital crimes, further highlighting the risks of subjecting criminals to the ultimate punishment. According to Levy (2014), in a study published in the peer-reviewed journal the Proceedings of the National Academy of Sciences, “since 1973, 144 people on death row have been exonerated” and an estimated “innocence rate is 4.1 percent, more than twice the rate of exoneration.” A lack of access to adequate representation can cause many defendants to languish in the criminal justice system.
Despite claims that the death penalty is just because it does not require the tax payer to subsidize a criminal for the duration of his or her existence, the actual evidence suggests that the death penalty is more expensive than imprisoning an individual for life because of the prolonged duration of the judicial process. “Death penalty cases are much more expensive than other criminal cases and cost more than imprisonment for life with no possibility of parole. In California, capital trials are six times more costly than other murder trials” due to “complex pre-trial motions, lengthy jury selections, and expenses for expert witnesses are all likely to add to the costs in death penalty cases” (Dieter 1992). Given the budget-strapped nature of many states, arguably such money is better invested into improving law enforcement and drug treatment efforts, versus the expense of bringing death penalty cases to trial.
The US Supreme Court has also increasingly limited the range and type of offenses which may receive the death penalty. Proportionality is a key criteria for allocating the ultimate punishment to prisoners, according to the Court. In the case Coker v. Georgia, the US Supreme Court ruled that the death penalty cannot be applied to rape cases (“Death penalty,” 2017). Interestingly enough, one of the arguments used by the court in Coker was that public opinion did not support the use of the death penalty for rape. The fact that opposition to the death penalty is at an all-time low is thus extremely significant, given that notions of proportionality and what constitutes cruel and unusual punishment are even, from a court perspective, somewhat subjective. Additionally, the public has also expressed fears and concerns about the way the death penalty is administrated. In the Pew Research study on public opinion and the death penalty, “majorities said there was some risk of an innocent person being put to death (71%) and that the death penalty does not deter serious crime (61%)” (Oliphant 2016). This fear underlines the moral principle that it is better to let a guilty person go free than to see an innocent person condemned to suffer an unjust punishment.
Arguments in Favor of the Death Penalty and Counter-Arguments
Given that a large percentage of the population still supports the death penalty, it is still important to give careful consideration to their counterarguments. When arguing for the death penalty, the punishment’s deterrent value is often cited. Simply put, this suggests that when people fear the loss of their lives if they are convicted of a heinous crime, they are less apt to engage in such crime. The principle of deterrence is inherent to the criminal justice system itself, given that punishment is allocated and based upon the presumption that people are less apt to commit crimes when they will suffer unpleasant consequences.
But according to the humanitarian watchdog group Amnesty International, there is no significant statistical evidence that the death penalty acts as a deterrent. It cites the nonpartisan National Research Council’s conclusion of a meta-analysis of studies “claiming that the death penalty affects murder rates were ‘fundamentally flawed’ because they did not consider the effects of noncapital punishments” and used “incomplete or implausible models” (“The death penalty and deterrence,” 2012). If life in prison has an equally deterrent effect, it should be used instead, given the possibility of judicial error. Additionally, a 2009 survey of criminologists found that 88% stated that there was no evidence that the death penalty acted a deterrent to heinous crimes (“The death penalty and deterrence,” 2012).
Also questioning the deterrence value of the death penalty is the fact that it is unjustly applied—as noted before, the death penalty’s effects are disproportionately felt by minority communities. The uncertainty as to how this ultimate punishment may be allocated argues against the idea that people, regardless of race or class, will think twice before committing an evil action because they fear the death penalty. There is also evidence that the death penalty is not a deterrent because “murder rate in non-Death Penalty states has remained consistently lower than the rate in States with the Death Penalty,” suggesting that other social forces are significant in terms of the behavior of individuals and their decision to violate or to act in accordance with the law (“The death penalty and deterrence,” 2012).
Of course, another popular argument used to defend the death penalty is the idea that it is just retribution for a heinous act. Once again, this traces back to the ancient notion of an eye for an eye and a tooth for a tooth being the only fair and just punishment to be meted out for the taking of a life. But once again, the fact remains that not all murders are punished by death in the US and the ways in which the death penalty is enforced vary considerably based upon the state where the trial takes place and the racial identity of the criminal versus the victim. Furthermore, given the presumption that murder is the most evil action which can be performed, the potentiality of the state taking the life of an innocent person, which is a very real possibility, argues against the notion that the death penalty is in any way just.
Opponents of the death penalty also argue that it is irrelevant if other nations, including most industrialized European nations, have prohibited the death penalty. They argue that it is important for the United States to take a stand for its own moral values. However, given that the United States wishes to take a bold stand in favor of human rights, it cannot afford to disregard what other nations do and the standards other moral nations have set regarding how criminals are treated within their justice systems. According to a 2011 study published in The Guardian: “China, together with Iran, North Korea, Yemen and the US (the only G7 country to still execute people) carried out the most executions last year” (“Death penalty statistics by country,” 2017). The US is in a poor position to criticize other nations when it carries out similar policies in regards to its prisoners. The United States should stand as a beacon of moral light to other nations in regards to its policies versus engage in troubling practices in terms of the ways in which it treats its own prisoners.
The history of executing prisoners has had a long and troubling history throughout civilization since the ancient world, but particularly in the United States, which espouses the value of freedom and democratic values. Today, the tide of public opinion is increasingly against the idea that capital punishment is aligned with the principles of the United States. There has been increasing attention drawn to notable cases of individuals who were exonerated after languishing for years on death row. The potential failures of the justice system suggest that wielding a permanent punishment is unwise, unjust, and cruel and unusual. The US Supreme Court has increasingly restricted the ability of state legislators to execute criminals, even though it has drawn the line against declaring the death penalty itself to be cruel and unusual. Finally, the fact that the death penalty has been disproportionately used against persons of color and historically-discriminated against minorities, versus in a fair and just fashion, further underlines the need to abolish the death penalty.
Gregg v. Georgia. (1976). Bill of Rights Institute. Retrieved from: https://www.billofrightsinstitute.org/educate/educator-resources/lessons-plans/landmark-supreme-court-cases-elessons/gregg-v-georgia-1962/
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